Make it easier for private sector to help pay for environmental cleanups

President Trump’s 2021 budget proposal calls for a 10 percent cut of $113 million for Superfund, the federal government’s main program for cleaning up sites contaminated by hazardous pollutants. This continues a decades-long trend of reduced funding for the program, even as the number of sites designated for cleanup has steadily increased.

This is no small problem. Despite a backlog of more than 1,300 listed Superfund sites, the Environmental Protection Agency certifies the completion of only about 10 cleanups per year. At that rate, it’ll be 2150 before all of these sites are cleaned up — and that’s assuming no other sites are added to the to-do list.

The key to cleaning up more polluted sites is to become less reliant on fickle federal funding. That means increasing opportunities for the private sector to contribute to cleanups. Unfortunately, federal regulations often discourage such contributions.

Consider abandoned mines. Approximately 500,000 abandoned mines pockmark the American West, remnants of an era when the promise of gold and other valuable minerals helped populate western territories. Although these mines were exhausted long ago, they continue to impair an estimated 110,000 miles of streams, including 40 percent of headwater streams in western states, by releasing water contaminated by heavy metals and other toxins.

Local governments, water utilities, mining companies and conservation groups have expressed interest in cleaning up abandoned mines, but they often have been discouraged from taking on such projects because Superfund and the Clean Water Act make anyone attempting to clean up an abandoned mine completely responsible for it. The unlimited financial liability and litigation risk imposed under these regulations is too much for such “Good Samaritan” groups to take on.

These perverse incentives send a clear signal to would-be Good Samaritans. As one federal judge described the message sent by these incentives: “Do nothing! Let someone else take on the responsibility. Let the water degrade, let the fish die, but protect your pocketbook from vast and unnecessary expenditures.”

The consequences of inaction can be dire. Recall the disastrous Gold King Mine spill into the Animas River watershed in Colorado in 2015. In that case, the EPA inadvertently released 3 million gallons of contaminated water by breaching an abandoned mine, turning the river bright orange.

The total cost to clean up all abandoned mines is estimated to be $70 billion, far exceeding the federal funding ever likely to be available. Thus, it is critical to reduce the obstacles to private sector participation.

In a recent report for the Property and Environment Research Center, I explain how Congress can take steps to encourage Good Samaritans to help clean up abandoned mines.

First, Congress should amend Superfund and the Clean Water Act to protect Good Samaritans from unfair liability risks. Good Samaritans should be responsible if they cause environmental harm through carelessness. But there’s no good reason to make a Good Samaritan liable for the mine’s existing or unforeseeable harms. Likewise, Congress should minimize red tape for cleanups. Time and money spent by would-be Good Samaritans on unnecessary bureaucracy are resources that could be better put to work restoring the environment.

Second, Congress should replace the existing disincentives with positive incentives that reward Good Samaritans for successful cleanups. Mitigating adverse environmental impacts from abandoned mines benefits the federal government, states and localities, property owners, recreationists and conservationists. An incentive framework allowing Good Samaritans to capture a share of these benefits could lead to more cleanups and innovation.

There are many ways to create these incentives. Congress could provide matching funds to Good Samaritans, in recognition that their work reduces federal cleanup liability. Alternatively, Congress could expand an existing market solution to water quality challenges. Water quality trading, which requires polluters to buy credits from others who reduce pollution, could be used more in streams impaired by abandoned mines. Credits would reward successful Good Samaritans for their efforts.

As the abandoned mine problem demonstrates, too much dependence on federal funding is risky. Creating a greater role for the private sector will spur innovation and more effective environmental solutions.

Jonathan Wood (@Jon_C_Wood) is a research fellow with the Property and Environment Research Center and a senior attorney with Pacific Legal Foundation. He’s the author of the new report “Prospecting for Pollution: The Need for Better Incentives to Clean Up Abandoned Mines.”